giving effect to public international law and european community

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* Respectively, Reader in European Private Law, University of Exeter, and Professor of International Lawand Director of the Amsterdam Center for International Law, University of Amsterdam. The authorsthank Hege Kjos of the Amsterdam Center for International Law for helpful comments on an earlierversion of this article. The article was written as part of the research project ‘Interactions betweenInternational Law and National Law’ at the Amsterdam Centre for International Law, funded by theNetherlands Organization for Scientific Research.

..............................................................................................................................................................EJIL (2003), Vol. 14 No. 3, 569–589

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Giving Effect to PublicInternational Law and EuropeanCommunity Law beforeDomestic Courts.A Comparative Analysis of thePractice of ConsistentInterpretation

Gerrit Betlem and André Nollkaemper*

AbstractThis paper explores differences and similarities in how domestic courts — mainly Dutchcourts — apply two distinct forms of non-domestic law: public international law andEuropean Community law. The article focuses on the application of the principle thatdominates practice in both areas: that courts should, whenever possible, construe nationallaw in conformity with, respectively, public international law and European Communitylaw. This article offers a systematic comparison of how courts employ this principle. On thebasis of a detailed analysis of the relevant national case law and the case law of the EuropeanCourt of Justice (ECJ), it is argued that there is no fundamental divide between the applicationof public international law and EC law (despite the theoretically opposing starting points);differences in application are a matter of degree not of principle. The principle of consistentinterpretation proves to be effective and of great practical importance in both areas andfurther testifies of similarities in the impact of the two areas on domestic law.


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1 In this article we use the term ‘international law’ as a generic term referring to both public internationallaw and EC law.

2 Jurisdiction of the Courts of Danzig, 1928 PCIJ Series B, No. 15., pp. 17–18.3 Case 26/62, Van Gend en Loos, [1963] ECR 1.4 Case 6/64, Costa v. ENEL, [1964] ECR 585.5 P. Malanczuk, Akehurst’s Modern Introduction to International Law (1997), at 3–5.6 Leben, ‘Hans Kelsen and the Advancement of International Law’, 9 EJIL (1998) 298.7 Ibid., at 295.

1 IntroductionFor some time after the introduction of Community law, in the late 1950’s, there waslittle difference in the way in which national courts handled arguments involvingpublic international law, on the one hand, and E(E)C law, on the other. The courts’reception of all rules of international law1 was governed by disparate constitutionalprovisions and the undeveloped doctrine concerning the invocability of treaties innational courts set forth by the Permanent Court of International Justice (PCIJ) in theDanzig case.2 Enforcement of international law in cases where the legislative orexecutive branch acted contrary to international law was sought at the internationallevel. Aside from narrowly defined issues such as jurisdiction and immunities,national courts were sidelined as a systematic force in the application anddevelopment of international law.

According to common wisdom in modern international legal scholarship, all thischanged with the judgments of the European Court of Justice (ECJ) in Van Gend andLoos3 and Costa v. ENEL.4 The Court’s finding — that E(E)C law was different fromordinary international treaties — was on the whole accepted by Member States,thereby transforming EC law from purely interstate law to include rights andresponsibilities of private parties, and brought national courts to centre stage in theenforcement of EC law. In cooperation with the ECJ, national courts proceeded todevelop subtle and intricate doctrines pertaining to the rights and liabilities of privateparties with respect to EC law. When we contrast this development with the commonunderstanding of public international law, which is still depicted in all majortextbooks as a system of law whose enforcement is primarily in the hands of states,5

public international law looks ‘ordinary’ indeed.The success of EC law has made it a model for lawyers dealing with public

international law. Charles Leben writes:

“Community law is ‘successful international law’, and . . . is thus a possible horizon ofinternational law, indicating the route that international law must follow if it is to moveforward.”6

The present article argues that differences in the courts’ application of publicinternational law, on the one hand, and EC law, on the other, are more subtle than isoften assumed. It substantiates and expounds the observation made by Leben that thedistinctive features of the operation of Community law ‘almost all exist but in a far lessdeveloped and efficient state in the international legal order’.7 In certain legalcontexts, the reception of public international law has moved far beyond the purelyinter-state model, and looks much like that of EC law. The article aims to qualify the


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Giving Effect to Public International Law and European Community Law 571

dominant picture of the great divide between European law and public internationallaw that is underlying in much of current legal scholarship, and leads us to reconsiderthe distinction between the two legal systems.

The article proceeds through an inductive method. We leave the theoretical issuesthat explain remaining differences between these legal fields to another time, toanalyse on an empirical basis what national courts do in practice. We will do so byreviewing the application of what has, in practice, proven to be the most importantdoctrine used by courts to grant effect to international law: the principle of consistentinterpretation. The principle of consistent interpretation refers to the principle thatrequires courts to interpret national law in conformity with a rule of internationallaw, with a view to ensuring that rule is given effect.

National case law considered in this article is taken for the most part from oneMember State of the EU: the Netherlands. Its open Constitution and liberal judicialpractice provide a rich case law on techniques giving effect to international law. Ofcourse, the fact that Dutch courts are constitutionally allowed more leeway thancourts in most other EU Member States, does limit the degree to which some of theconclusions of this article can be generalized. However, it is believed that there issufficient similarity in judicial techniques employed by the courts of the MemberStates to make the analysis pertinent to practice beyond The Netherlands and, indeed,for our understanding of the differences between public international law, in general,and EC law. Moreover, part of the relevance of the principle of consistentinterpretation lies precisely in the fact that this principle is only marginally influencedby constitutional provisions and can be used even when constitutional law otherwiseseems to bar application of international law. To illustrate this, reference is made tothe practice in states with constitutional systems that differ from that of TheNetherlands, notably the United Kingdom.

We shall analyse the principle of consistent interpretation as it operates with respectto EC law and public international law under the following headings: a clarification ofthe concept of consistent interpretation (2), the controlling legal systems (3), theconditions for the application of the principle of consistent interpretation (4), the legalrelationships in which the principle can be applied (5) and the legal effects of theprinciple (6). In section 7 we add a comparative note by examining the interpretativeobligations for the courts under the UK’s Human Rights Act 1998 and section 8 drawsconclusions.

2 The Relationship between Direct Effect and ConsistentInterpretationThe principle of consistent interpretation is to be distinguished from the principle ofdirect effect. With direct effect we refer to the principle that requires or allows anational court to apply a rule of international law as an independent rule of decision inthe national legal order, when that rule is not transposed, or not adequately so, indomestic law. The difference is that when a court grants direct effect to a rule of


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8 R.H. Lauwaars & C.W.A. Timmermans, Europees gemeenschapsrecht in kort bestek (1997) 100.9 Case 26/62, [1963] ECR 1.

international law, it uses that rule as an autonomous or independent basis of decision;in the case of consistent interpretation the rule is used to construe a rule of nationallaw in the light of international law. For this reason the principle of consistentinterpretation can also be referred to as ‘indirect effect’ — indirect: via a rule ofnational law.

The distinction between direct and indirect effect is not always clear. Direct effectalso presupposes the existence of a rule of national law (written or unwritten) thatallows courts to give effect to international law. These can be either generalconstitutional rules that incorporate the entire body of international law in thenational legal order, or specific rules of reference that incorporate particular treaties orother rules of international law. In some cases it might be argued both that a rule ofinternational law is applied directly on the basis of a rule of reference, or that the ruleof reference is construed on the basis of the principle of consistent interpretation.

The principles of direct effect and indirect effect provide alternative techniques fornational courts to ensure that international law is effectively applied. But the choicebetween these techniques is not a free one. In practice, courts will always attempt firstto reconcile a conflict between international law and national law through theprinciple of consistent interpretation. If that proves impossible, for instance if thenational law is so clearly in contradiction to international law that no principle ofinterpretation can remove that inconsistency, only then will courts consider applyingthe rule of international law directly. Both in EC law and in the application of publicinternational law, the principle of indirect effect has priority over direct effect.8

3 Controlling Legal SystemsIt is commonly thought that one of the key differences between EC law and publicinternational law is that with the latter, the effect of a norm in the national legal orderis determined by national law, not international law; in EC law however, such effect isa matter of EC law, not national law.

This was indeed the distinction the ECJ created in Van Gend & Loos.9 The Court heldthat unlike ‘normal’ international conventions, the EEC Treaty is more than anagreement creating mutual obligations between the Contracting States. An indepen-dent legal order shared by the Member States has been created: Community law isintended to confer rights upon individuals, independent of the legislation of MemberStates. Moreover, the Court held that EC law, rather than national law, determines itseffect in the national legal order. This ruling also had institutional consequences: toensure that a particular provision of EC law has the same effect throughout this new


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10 This also follows from the subsequent case Costa v. ENEL, Case 6/64, [1964] ECR 585: ‘The executiveforce of Community law cannot vary from one State to another in deference to subsequent domestic laws,without jeopardising the attainment of the objectives of the Treaty set out in Article 5 (2) [now Article 10]and giving rise to the discrimination prohibited by Article 7 [now Article 12].’

11 The European Court of Human Rights, which supervises an area of international law that is particularlyintegrated in national law, has held that while incorporation of the European Convention on HumanRights in national law would be a faithful method of applying the Convention (see Ireland v. UnitedKingdom, ECHR (1978) Series A, No. 25, par. 239), the European Convention is formally neutral as to itsmode of implementation and does not require incorporation. See the case of Swedish Engine Drivers’ Unionv. Sweden ECHR (1976) Series A, No. 20, par. 50 (which states that the Convention does not lay down ‘forthe Contracting States any given manner for ensuring within their internal law the effectiveimplementation of any of the provisions of the Convention’). See also J.A. Frowein, ‘Incorporation of theConvention into Domestic Law’, in The British Institute of International and Comparative Law and TheBritish Institute of Human Rights, Aspects of Incorporation of the European Convention into Domestic Law(1993) at 2–11 (noting that while articles 1 and 13 may suggest an obligation to apply the conventiondirectly, the fact that six of the original contracting parties did not allow for incorporation makes aninterpretation to that effect implausible). What matters is that the substance of the rights should in fact beenjoyed by individuals; see M. A. Janis, R. Kay and A. Bradley, European Human Rights Law. Text andMaterials (2000) 472.

12 See T. Buergenthal, ‘Self-Executing and Non-Self-Executing Treaties in National and International Law’,Recueil des Cours 1992-IV, 320–321, noting that ‘a treaty that, as a matter of international law, isdeemed to be directly applicable is not self-executing ipso facto under the domestic law of the states partiesto it. All that can be said about such a treaty is that the States party thereto have an internationalobligation to take whatever measures are necessary under their domestic law to ensure that the specificprovisions of the treaty . . . not only of its substantive obligations, are accorded the status of domestic law.’

13 See, for further discussion, Nollkaemper, ‘The Direct Effect of Public International Law’, in J. M. Prinssenand A. Schrauwen (eds), Direct Effect. Rethinking A Classic of EC Legal Doctrine (2002), p. 157; and P. Craigand & G. de Búrca, EU Law. Text, Cases and Materials, 3rd edn (Oxford 2002) at 315 referring to thebi-dimensional character of supremacy.

legal order, it is up to the ECJ and not national courts to rule on the effect ofCommunity law.10

In contrast, public international law is thought to be silent on the validity and theeffects of international law in the national legal order. Many states, in particular thosefor whom parliamentary approval is not a precondition for entry into force of treatyobligations, consider themselves at liberty to separate their international rights andobligations from the national legal order and prevent their organs from applying rulesof international law that are not made part of national law. No international court hassaid that these practices are ‘illegal’ as such and that international law creates, out ofits own force, effects in the national legal order.11 These effects are conditional upon aprior decision of states accepting the validity of public international law. Without theunconditional acceptance of the principle of validity, international law lacks the forceto penetrate the national legal orders and to empower national courts to applyinternational law where national law fails.12

However, this fundamental distinction between EU law and international law,which needs to be qualified even with regard to the principle of direct effect,13 is to alarge extent irrelevant to the practice of consistent interpretation.

In Community law the principle of consistent interpretation is, similar to theprinciple of direct effect, governed by EC law, not national law. Community law


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14 Case 14/83, Von Colson and Kamann, [1984] ECR 1891, para. 26; see also Case 79/83, Harz, [1984] ECR1921.

15 Case C–106/89, Marleasing, [1990] ECR I–4135.16 See also General Comment No. 9 of the UN Committee on Economic, Social and Cultural Rights on the

domestic application of the Covenant (UN Doc. A/CONF.39/27), para. 15: ‘It is generally accepted thatdomestic law should be interpreted as far as possible in a way which conforms to a state’s internationallegal obligations. Thus, when a domestic decision maker is faced with a choice between an interpretationof domestic law that would place that state in breach of the Covenant and one that would enable the Stateto comply with the Covenant, international law requires the choice of the latter.’

17 There is truth in the observation of Morgenstern, ‘Judicial Practice and the Supremacy of InternationalLaw’, 27 BYIL (1950) 92, stating that true supremacy of public international law would be ‘obscured bythe fact that, owing to the absence of compulsory judicial dispute settlement in the international sphere,responsibility is not always the automatic consequence of violation of rules of law’.

18 Morgenstern states that ‘The trend of judicial opinion is significant. It shows that courts have realizedthat international law, by its very nature, must be enforced contrary provisions of municipal lawnotwithstanding’, supra note 17, at 85–86.

obliges the national courts to construe their domestic law in conformity with the lawof the EC. In the Von Colson case, the ECJ held that ‘all the authorities of the MemberStates’ must interpret their national law in light of the wording and the purpose of thedirective in order to achieve the result referred to in the third paragraph of Article 189EC (now Art. 249).14 The courts must, insofar as they are given discretion to do soaccording to national law, construe and apply national law, and in particular theimplementing legislation, in conformity with the requirements of Community law(ibid, para. 28). In Marleasing15 the ECJ elaborated on this issue as follows: ‘[I]napplying national law, whether the provisions in question were adopted before or afterthe directive, the national court called upon to interpret it is required to do so, as far aspossible, in the light of the wording and purpose of the directive . . .’ (para. 8).

In public international law, one cannot find a comparable authoritative formu-lation of the principle that, under public international law, courts should construetheir domestic law in conformity with international law. However, there seems to besufficient acceptance of the notion of international law as ‘higher law’ that must begiven effect in the national legal order, and that courts, as state organs, are responsiblefor the proper application of international law within their jurisdiction;16 to argue thatthe position that public international law is neutral on the matter of consistentinterpretation is too narrow.17 State practice allows one to infer an international dutyof courts to interpret, within their constitutional mandates, national law in the light ofinternational law.18

Irrespective of the existence of a general yet unarticulated principle requiringconsistent interpretation, the difference between a controlling EC law on the onehand, and the more neutral position of public international law, on the other, islargely mitigated by the fact that there is widespread practice in courts in manycountries which apply this principle. In the Netherlands, the Hoge Raad (SupremeCourt) has long held that unless the legislature has explicitly stated otherwise, anyprovision of Dutch law must be interpreted so as to avoid a breach of international


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19 E.g. Hoge Raad 16 November 1990, NJ 1992, 107, para. 3.2.3 [hereinafter HR].20 Minister of State for Immigration and Ethnic Affairs v. Ah Hin Teoh, High Court of Australia, 7 April 1995,

128 ALR 353, para. 27.21 Kurtz and Letushinsky v. Kirschen, Supreme Court, 27 June 1967, 47 ILR 212, at 214–215.22 For the US: Murray v. The Charming Betsy (1804), 2 Cranch, 64, 118. See generally, Steinhardt, ‘The Role

of International Law as a Canon of Domestic Statutory Construction’, 43 VandLRev 1103 (1990); forAustria: Balthasar, ‘“Pacta sunt servanda.” Zur innerstaatlichen Relevanz von durch Staatsvertrageseingegangenen Verpflichtungen Osterreichs’, 50 ZOR (1996) 169–171; for Israel: Kurtz and Letushinskyv. Kirschen, Supreme Court, 27 June 1967, 47 ILR 212, at 214–215.

23 Cf. H. Lauterpacht, International Law. Being the Collected Papers of Hersch Lauterpacht (E. Lauterpacht, ed.),Vol. 2 (1975), 548, noting that the practice of voluntary acceptance of international law in the nationallegal order has, as long as it lasts, ‘the effect of elevating to the authority of a legal rule the unity ofinternational and municipal law’.

24 For a discussion of the national differences in applying the doctrine of direct effect see Jans and Prinsen,‘Direct Effect: Convergence or Divergence? A Comparative Perspective’, in J. M. Prinssen and A.Schrauwen (eds), Direct Effect. Rethinking A Classic of EC Legal Doctrine (2002) 105–126.

25 This is daily routine for the European Court of Human Rights. Decisions of the ICJ may also be relevant,for instance in the LaGrand Case (Germany v. United States), Judgment of 27 June 2001, 40 ILM 1069.

26 P. Weil, ‘Le droit international en quête de son identité. Cours général de droit international public’,Recueil des Cours 1992-VI, Vol. 237, 220–223.

law.19 There is a large number of other states with a similar practice, including dualiststates like Australia, 20 Israel21 and, as will be developed in section 7, the UnitedKingdom.22 In those states, the practice of consistent interpretation is as much areality as if it were explicitly required by public international law itself. Even when theeffect of international law could be revocable by the executive or by the legislature, aslong as this is not done, the result is similar to that of a situation in which there existsan international obligation of consistent interpretation.23

This does not mean that the practice of consistent interpretation in EC law and ininternational law can be equated. States naturally retain more autonomy indetermining the conditions and consequences of indirect effect in public internationallaw. Substantial differences in the indirect effect of EC law do exist in the approachestaken by national courts regarding this,24 but in public international law thisautonomy is magnified. International courts, while they are not irrelevant to theapplication of international law at the national level,25 cannot perform the role of theECJ in controlling uniformity. All this is in keeping with the normal process ofauto-appreciation in the application of international law.26 The main similarities anddifferences in the application of the principle are explored below.

4 Conditions for the Application of the Principle ofConsistent InterpretationThree aspects can be distinguished concerning the conditions for the application of theprinciple of consistent interpretation: when is the principle applicable, what rules ofnational law must be interpreted in the light of international law, and what rules ofinternational law can be used for purposes of interpretation.


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27 See Case C–62/00, Marks & Spencer, [2002] ECR I–6325 (judgment of 11 July 2002), paras. 22–28; seealso S. Prechal, Directives in European Community Law (1995), 210 et seq.

28 In particular, see Case 300/95, Commission v. UK, [1997] ECR I–2649 (Re: Product Liability Directive).29 Prechal, supra note 27, at 214; Jans, ‘Rechterlijke uitleg als implementatie-instrument van EG-

richtlijnen: spanning tussen instrument en rechtszekerheid’, in: T. Hoogenboom & L.J.A. Damen (eds), Inde sfeer van administratief recht — Konijnenbelt bundel (1994) 237.

30 Case C–106/89, Marleasing, [1990] ECR I–4135.31 As well as for the British Human Rights Act 1998, see section 7, below.32 HR 3 March 1919, NJ 1919, 371.33 HR 16 November 1990, NJ 1992, 107, par. 3.2.3.34 Opinion of A-G Elmer in Case C–168/95, Arcaro, [1996] ECR I–4705, No. 40; Prechal, supra note 27, at

227.

The principle of consistent interpretation is primarily applied when the rule ofinternational law in question has not been transposed in national law. However, theprinciple is not limited to that situation. In EC law, the principle applies both where thedirective in question has or has not been properly transposed.27 Indeed, sinceCommunity law requires that the result envisaged by a rule of EC law must be attainedin law and in fact, judicial interpretation and application will often be decisive for thecorrect transposition of these rules.28 Where the legislature has timely and correctlytransposed the rule — the normal situation — a court is unlikely to encounter theboundaries of acceptable interpretation; in the absence of such transposition — theproblem situation — and where there is some discrepancy between the wording of therule and the implementing legislation, the application of supra-national law does callfor a certain judicial creativity.29

As to the question of which rules of national law can be interpreted in the light ofinternational law, it is suggested that the principle of consistent interpretationrequires all provisions of national law to be interpreted in light of international law —not only those adopted to implement the international provision. With regard to EClaw, the ECJ stated this expressly in Marleasing:30 ‘[I]n applying national law, whetherthe provisions in question were adopted before or after the directive, the national courtcalled upon to interpret it is required to do so, as far as possible, in the light of thewording and purpose of the directive . . . [Emphasis added]’ (para. 8). The same is truefor public international law in The Netherlands.31 While initially the Hoge Raad hadtaken the position that the principle of consistent interpretation was based on thepresumption that the legislator would not unilaterally deviate from agreements madewith other states,32 the courts now take a broader approach and hold that everyrelevant national norm is subject in principle to interpretation consistent with publicinternational law.33

The most important legal condition for the application of the principle of consistentinterpretation is that the contents of the provision of national law must be open tointerpretation in conformity with the norm of international law. Community law doesnot require a contra legem interpretation.34 Likewise, the judge’s power to apply publicinternational law indirectly is first and foremost determined by the scope forinterpretation allowed by the wording of the national provision. However, inparticular cases courts have stretched this scope for interpretation and have ‘read


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35 Van Dijk, ‘De houding van de Hoge Raad jegens de verdragen inzake de rechten van de mens’, in A.R.Bloembergen et al. (eds), De plaats van de Hoge Raad in het huidige staatsbestel (1988) 200; Van Houten,‘Contra legem werking van beginselen, toetsing van de wet aan beginselen en beginselconformeinterpretatie van de wet’, Ars Aequi 1992, 698, 703; Prechal, supra note 27, at 229 et seq.

36 Case 8/81, Becker, [1982] ECR 53, at 71; Opinion of A-G Trabucchi in Case 43/75, Defrenne II, [1976]ECR at 488. This criterion is comparable to the principle of direct effect that is applied in most states withrespect to public international law; see Nollkaemper, supra note 13 at 169–179.

37 Case C–165/91, [1994] ECR I–4661, para. 34.38 Cf. HR 2 May 1995, NJ 1995, 621 (interpretation of the Criminal Code in the light of Art. 1 of the

International Convention on the Elimination of All Forms of Racial Discrimination).39 See also A-G Koopmans in HR 11 December 1992, NJ 1996, 229, para. 6; see also A-G Keus in HR 19

April 2002, NJ 2002, 298 (on the application, by way of consistent interpretation, of Art. 50(6) of theTrade-Related Aspects of Intellectual Property Rights, that was held by the ECJ to have no direct effect inCase C–89/99).

40 Opinion of A-G Trabucchi in Case 43/75, Defrenne II, [1976] ECR, at 488.41 Nollkaemper, supra note 13, at 161.

into’ a national provision a norm of international law that clearly was not there (seesection 6, below). Both in respect to Community law and to international law, thetextual limit reflects the intertwining of methods of interpretation, the constitutionalposition of the courts, contra legem construction and the principle of legal certainty.35

As to the question of what rules of international law can be used to interpretnational law, both in EC law and in public international law, the principle ofconsistent interpretation applies to all rules of international law. The principle ofdirect effect is confined to a narrow category of rules that satisfies the criterionof justiciability;36 however, application of the principle of consistent interpretation isnot subject to any a priori qualities of a rule of international law. For EC law, it followsfrom the Van Munster case that all binding norms of EC law may be relevant forapplying the principle of indirect effect.37 The same is true for practice regarding rulesof public international law. Dutch courts have held that rules of international law thatdid not qualify for direct effect, could nonetheless be relevant to the interpretation ofrules of national law. 38 Since it is primarily a rule of national law that is applied andthe courts accordingly do not usurp any legislative powers (one of the key rationales ofthe test of direct effect), the requirement of specificity is not decisive.39

Likewise, the principle of consistent interpretation is not theoretically dependent onthe identity of the addressee of a rule of international law. This is not a criterion in EClaw in any case, neither for direct effect40 nor for indirect effect. However, for publicinternational law, the nature of the addressee often functions as a barrier to theapplication of the principle of direct effect, in the form of a test of invocability orsubjective direct effect.41 As many courts consider most rules of international law to beof an ‘interstate’ nature, they have often refused to grant direct effect, not because thenorm is too ambiguous, but because it is directed towards state parties rather thanprivate parties. For instance, in civil cases concerning the legality of the participationof The Netherlands in the Kosovo bombings in 1999, Dutch courts held that Article2(4) of the United Nations Charter had no direct effect because it was not intended to


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42 Court of Appeals Amsterdam, 6 July 2000, Reproduced, with annotation by Ferdinandusse andNollkaemper, in 26 NJCM-Bulletin (2001), at 208–221.

43 This of course does not mean that standing issues will not be relevant; both in regard to EC law and publicinternational law, courts will examine whether persons invoking a rule of international law have a legalinterest that is protected by the rule.

44 http://www.unidroit.org/english/conventions/c-cult.htm; see Van Gaalen & Verheij, ‘De gevolgen vanhet Unidroit-Verdrag inzake gestolen of onrechtmatig uitgevoerde cultuurgoederen voor Nederland’,Nederlands Juristenblad 1997, 197.

45 Rb. Den Haag 28 February 1996, NIPR 1997, 103.

protect the rights or interests of private parties.42 By contrast, the principle ofconsistent interpretation is not subject to preliminary assessments of whether the ruleof international law in question was intended to protect private rights and thereby cancircumvent these obstacles.43

5 Legal Relationships Governed by the Practice of ConsistentInterpretationThe standard situation in which rules of international law are applied, whetherthrough direct effect or indirect effect, arises in the relationship between a state and aprivate person, where the state has failed to implement or apply a rule of internationallaw, to the detriment of the rights or interests of a private party. The application of theprinciple of consistent interpretation to this legal relationship as such is notproblematic and does not call for further discussion.

More pertinent is a discussion of the application of the principle of consistentinterpretation to legal relationships where it is not the state, but a private party thathas acted contrary to a rule of international law. This may occur in two legalrelationships: between a state and a private person, in particular in criminal cases (theso-called inverse vertical relationship) and between two private parties (the so-calledhorizontal relationship). For reasons of space, we shall examine the latter only.

The question of the conditions needed to grant indirect effect in a legal relationshipbetween two private parties may arise in particular in the use of international law toconstrue unwritten norms of due care or the standard of negligence. In principle, thisis an accepted method of the judicial construction of duties of due care. For example,the 1995 Unidroit Convention on Stolen or Illegally Exported Cultural Goods containsprovisions that are used to flesh out Dutch law on negligence in the context of apossessor’s good faith.44 Another example is a judgment by the The Hague districtcourt taking notice of the Code of Conduct of the Fédération Internationale du Ski whenapplying negligence under Austrian law in a skiing accident liability case.45 Thecontractual notion of good faith of Article 3:12 Dutch Civil Code has also beenconstrued in conformity with international rules or guidelines. For example, in aninsurance case, the Netherlands Hoge Raad used guidelines from the insurer’s branchsupervision body to elaborate on the notion of current legal views within the meaning


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46 HR 12 January 1996, NJ 1996, 683 (Kroymans/Sun Alliance), para. 3.13.47 See, among others, Case C–281/98, Angonese, [2000] ECR I–4139, Joined Cases C-92 and C-326/92,

Phil Collins v. Imtrat Handelsgesellschaft, [1993] ECR I-5145 and Case C-398/92, Mund & Fester v. HatrexInternationaal Transport, [1994] ECR I–467.

48 In the 1994 Faccini Dori case (Case C–91/92, [1994] ECR I–3325) the ECJ confirmed a principle it hadfirst adopted obiter dictum in the 1986 Marshall I case (Case 152/84, [1986] ECR 723) and held that ‘adirective cannot of itself impose obligations on an individual and cannot therefore be relied upon as suchagainst an individual’ (para. 19).

49 Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equaltreatment for men and women as regards access to employment, vocational training and promotion, andworking conditions, OJ 1976 L39/40; amended by Directive 2002/73/EC of the European Parliamentand of the Council of 23 September 2002, OJ 2002 L 269/15.

50 Case C–177/88, [1990] ECR I–3941.51 HR 30 June 1989, NJ 1990, 652 (Upjohn/Van Ommeren); see also HR 6 December 1996, NJ 1997, 219

(Du Pont de Nemours/Hermans).52 HR 25 October 1996, NJ 1997, 649; RAwb 1997, 36.

of Article 3:12 CC.46 Against this background, the question is whether analogousjudicial notice will be taken of EC law or public international law in the context ofnegligence.

The application of the provisions of the EC Treaty (or regulations) through theprinciple of consistent interpretation to horizontal relationships, similar to thesituation of inverse direct effect, does not cause any particular problems. Since theprinciple of direct effect allows for horizontal effect, 47 it is no surprise that the principleof indirect effect also applies in this legal relationship. Here too, however, the situationis different for directives because of the general inability for directives as such to imposeduties upon private parties.48 By contrast, the principle of indirect effect does apply inhorizontal situations. The most incisive application of the principle so far concerns theviolation of the prohibition on gender discrimination as laid down in Directive76/207/EEC on Equal Treatment of Men and Women,49 where — despite the absenceof direct effect — an employer was held liable in a situation where there would nothave been liability under the applicable national rules. The ECJ ruled that the simpleviolation of this prohibition suffices for civil liability ‘without there being anypossibility of invoking the grounds of exemption provided for by national law’ (para.25 of the Dekker case).50

That judicial notice can be taken of EC law in the context of negligence is illustratedby the Dutch Halcion case,51 where it was accepted that the notion of ‘defectiveproduct’ under Dutch tort law should be defined as ‘defective product’ within themeaning of the EC Product Liability Directive (which was not yet applicable atthe time). In another Dutch negligence case, Pink Floyd,52 the Court considered thepossibility of giving indirect effect to a directive by construing unwritten norms of duecare (negligence within the meaning of Article 6:162 Dutch Civil Code). It was arguedthat the EC Directive on the exhaustion of intellectual property rights should be giveneffect through the written or unwritten rules of competition law. In the first place, itwas argued by the right-holder that the Dutch law on trademarks, which wastraditionally construed as providing for so-called world wide exhaustion, should beinterpreted in the light of a directive prescribing Community-wide exhaustion


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53 Cf. J.H. Jans, European Environmental Law (2000), 201; Betlem, ‘Onrechtmatig Milieugebruik: Schendingvan Groene Zorgvuldigheidsnormen’, 21 Recht en Kritiek (1995) 525. Cf. Asser-Hartkamp III, No. 51h.

54 Case 80/86, Kolpinghuis Nijmegen [1987] ECR 3969.55 Opinion in Case C–456/98, Centrosteel, [2000] ECR I–6007, No. 35.56 Case C–177/88, Dekker, [1990] ECR I–3941; Case C–180/95, Draehmpaehl, [1997] ECR I–2195.57 Prechal, supra, note 26, at 242.58 In the subsequent Case C–355/96, Silhouette, [1998] ECR I–4799, the ECJ found that, based on a

provision of the Directive (Article 7 of the First Council Directive 89/104/EEC of 21December 1998),Member States of the European Union should not be permitted to adopt a standard of internationalexhaustion.

(meaning that a right-holder’s trademark will only be exhausted where he has put theproduct on the market within the Community, thus being able to enjoin parallelimports from outside the Community). While the Court narrowly construed theprinciple of legal certainty in this case (see below), it did support the view thatdirectives can be given effect in horizontal situations concerning breaches ofunwritten duties of due care. 53

There are also certain limitations in horizontal cases, in particular in the form ofgeneral principles of law, which do restrict the application of indirect effect. InKolpinghuis, the ECJ referred to ‘the limits flowing from the principles of legal certaintyand non-retroactivity’ (para. 13).54 The terms used suggest that this reasoning focuseson the issue of criminal liability, without indicating what the law is in the civil lawcontext.

In other terms, those used by Advocate General Jacobs when affirming thewell-established principles of the principle of indirect effect, ‘it may well lead to theimposition upon an individual of civil liability or a civil obligation which would nototherwise have existed.’55 It appears that in civil law cases, limitations are not to befound in the mere fact that the individual is worse off (as this is just what happened inthe Dekker and Draehmpaehl cases),56 neither in the fact that consistent interpretationboils down to a kind of direct effect through the back door, nor in the fact thatadditional obligations are imposed on individuals. Rather, the issue is whether theoutcome of an interpretation of the applicable national law in civil cases in conformityto the directive is acceptable in the light of the general principles of law.57

The role of legal certainty as a limitation on horizontal indirect effect also wasconsidered in the above mentioned Pink Floyd case. Considering whether the Dutchlaw on trade marks, which was traditionally construed as providing for so-calledworld-wide exhaustion, should be interpreted in the light of a directive prescribingCommunity exhaustion, the Netherlands Hoge Raad ruled that the wording of theDutch Act did not permit such an interpretation (although the Act itself did not referas such to any specific territory) and that such an interpretation would be contrary tothe principle of legal certainty, as the traders could not have been aware of thisreading, given the wording of the Dutch Act.58 It was also argued that acting contraryto the Directive would constitute negligence (unfair competition). The NetherlandsHoge Raad replied as follows:

3.4 . . . This reasoning cannot be accepted because [the Directive] would impose obligations on


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59 See also the Opinion of A-G Mok, No. 5.2.7.2, without, however, mentioning consistent interpretation.60 Prechal, supra note 26, at 242; contra: Opinion of A-G Elmer in Case C–168/95, Arcaro, [1996] ECR

I–4705, No. 39.61 Cf. Prechal, ibid, at 241–2.62 Courts can apply directly effective provisions to determine the wrongfulness of acts of private parties and

to declare, for instance, that a tort has been committed. A contrario this follows from HR 1 June 1956, NJ1958, 424 (2nd Cognac case). Cf. HR 23 September 1988, NJ 1989, 743, para. 3.2 (MDPA).

63 Case note by Scholten under HR 26 April 1935, NJ 1935, p. 1617 (authors’ translation).64 Tammes, ‘“Een ieder verbindende” verdragsbepalingen’, Nederlands Juristenblad 1962, 71, at 74;

Alkema, case-note to HR 17 October 1980, NJ 1981, 141.

individuals, albeit indirectly, which is contrary to the principle that directives as such cannotbe relied upon against individuals and the national law can only be interpreted in conformitywith the Directive within the limits [of the principle of legal certainty] which would beexceeded.59

In the light of the case law of the ECJ, cited above, the Netherlands Hoge Raad’sconsiderations on horizontal indirect effect are not convincing.60 Only directlyimposing obligations on individuals by a directive (in the words of the Court: ‘as such’)is excluded. In Pink Floyd, at the end of the day, Dutch tort law would have beenapplied — the unwritten norms of due care as referred to by Article 6:162 CC — andnot the Directive as such.61

The situation in international law is different. The starting point is that rules ofinternational law (taken as rules based on an international source) may well applybetween private parties: indeed, this is the very rationale of treaties on matters ofprivate international law. These treaties are ‘binding upon everyone’ in the sense ofArticle 93 of the Dutch Constitution and are routinely applied between private parties.These norms can obviously also be applied in an indirect manner. Under certainconditions, treaties that were not intended to be applied to private parties, have alsobeen granted direct effect in a horizontal relationship. This is the case, for instance, ofthe European Social Charter and the European Convention on Human Rights, andalso appears to be possible more generally.62 Few provisions have been granted sucheffect, but if this is possible, and to the extent that such provisions can acquire directhorizontal effect, it seems that they also can be applied indirectly.

The more complicated question is whether rules of international law that primarilylay down rules for states, and that cannot be given direct effect, may, using theprinciple of consistent interpretation, be applied in a horizontal relationship. Caninternational law be relevant in construing unwritten duties of due care (Article6:162(2) CC) or, to put it more precisely, ‘should the court, when deciding what duecare requires in the case in hand, take notice of legislative intent regarding a desirableapproach in the form of the conclusion of an international convention, albeit that thelegislature has not yet transposed it into a statute?’63 One might conclude that,considering that courts have used a variety of non-legal texts to construe the norm ofdue care (see above), norms that have been approved by Parliament, even if they arenot incorporated in national legislation, could be used for this purpose. Severalauthors indeed have suggested that this should be possible.64 Case law is not


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65 HR 9 February 1942, NJ 1942, No. 371. Also: HR 1 June 1956, NJ 1958, 424 (2nd Cognac case).66 J.G. Brouwer, Verdragsrecht in Nederland (1992), at 215–216.67 HR 18 January 1980, NJ 1980, 464 (emphasis added).

supportive of this position, however.65 So far, Dutch courts have not explicitlyrecognized the possibility of indirect application of treaty law in the context ofnegligence.

It has been said that, at the time of drafting of the Constitution, the legislatureintentionally chose not to provide for indirect application of not-directly-effectiveinternational law in tort law. This was to prevent courts from exercising virtuallyunlimited powers in applying rules of international law that are not directlyeffective.66 The limiting factor would thus be based on concerns about separation ofpowers. It also could be said that applying rules that are not intended to create rightsand obligation for private parties would amount to imposing additional obligations onprivate parties, which was precisely precluded by the absence of direct effect. Thelimiting factor would then be based on the principle of legal certainty. This wasindicated in a case involving Articles 8 and 14 ECHR (family life and non-discrimination). Article 959 of the old Civil Code provided that only the relatives of aminor who had appeared in court have the right to appeal in guardianship cases. Thequestion arose as to whether this procedure is also applicable to children born out ofwedlock. Article 959 CC, as intended by the legislature, gave a negative answer to thisquestion. Articles 8 and 14 ECHR, and in particular the Marckx judgment, however,pointed to the opposite direction. The Netherlands Hoge Raad therefore eliminated thedistinction between children born in and out of wedlock. In this case, it did not ignorethe Civil Code’s provision; instead it interpreted it to include both categories ofchildren. However, the Hoge Raad added that:

“What impact the said development [towards equal treatment] should have — taking intoaccount the judgment of the European Court of Human Rights — on judicially establishing thecurrent Dutch law, must be assessed for each individual provision relevant to the saiddistinction [between children born within and outside wedlock]; the same applies to thequestion of which situations may be affected by the development, depending on when theyoccur(red), in the light of the requirements of legal certainty .”67

While practice is scarce, it appears that rules of public international law that do nothave direct effect cannot be used as an indirect source of law in the judicial assessmentof unwritten duties of due care, due to concerns on separation of powers and legalcertainty.

6 Legal Consequences of Indirect EffectTo fully understand the legal effects of indirect effect, these should be compared to theconsequences of direct effect. It can be recalled that both in EC law and in publicinternational law as applied in the Netherlands, direct effect may lead to givingprecedence to the international norm over the national norm. In EC law, this follows


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68 [1964] ECR 593–594; Cf. Opinion of A.-G. Reischl in Case 106/77, Simmenthal II, [1978] ECR at 650; T.C. Hartley, The Foundations of European Community Law (1998), at 218.

69 As the ICJ recalled in the Advisory Opinion on the Applicability to Arbitrate under Section 21 of the UnitedNations Headquarters Agreement of 26 June 1947: ‘international law prevails over domestic law.’, ICJReports (1988), at 12, 34.

70 Art. 94 reads: “Statutory provisions in force within the Kingdom shall not be applicable if suchapplication is in conflict with provisions of treaties that are binding on all persons or of resolutions ofinternational organizations.”

71 See also Case C–421/92, Habermann-Beltermann, [1994] ECR I–1657; Betlem, ‘The Effet Utile of IndirectEffect’, 2 MJ (1995) 73; and more recently, Case C–456/98, Centrosteel, [2000] ECR I–6007 and CaseC–386/00, Axa Royale Belge, [2002] ECR I–2209 (judgment of 5 March 2002), [2002] 2 CMLR 5.

72 HR 23 April 1974, NJ 1974, 272.

from the Costa v. ENEL case. 68 As for public international law, this results not so muchfrom international law itself, as it generally is thought that supremacy of internationallaw69 is confined to the international sphere, but from constitutional law. Accordingto Article 94 of the Dutch Constitution, all directly effective provisions of internationallaw take precedence over national law.70 In principle, norms that do not have directeffect will not lead to these consequences.

However, in practice the consequences of indirect effect can come very close tothose of direct effect. In Marleasing, the ECJ held that the requirement to construenational law in conformity with the directive at issue precludes the interpretation ofthe former in such a manner that other grounds of nullity of companies than the oneslisted in the Directive apply (para. 9). It follows that the principle of consistentinterpretation in Community law goes further than a general incentive to ‘reconcilinginterpretation’. For the outcome — and even the formulation: ‘Community lawprecludes application of national law’ — is the same as for direct effect. The way effectwas given to the Directive in the present case boiled down to a ‘prohibition’ for theSpanish court to apply a provision of the Civil Code insofar as it would produce a resultnot envisaged by the Directive.71

The effects of public international law can also resemble those achieved by directeffect had it been used. One example is a case in which a German citizen wasprosecuted before a Dutch court for a violation of the Dutch Road Traffic Act. Thesubpoena was issued in Dutch. The Netherlands Hoge Raad considered that this wascontrary to Article 6(3) ECHR. The lower courts had held that the charges wereinadmissible and that the subpoena was void. Suspending the charges did not seempossible as Articles 14–16 of the Dutch Code on Criminal Procedure established anexhaustive list of the grounds for suspension (and did not provide for this situation).Nonetheless, the Netherlands Hoge Raad ruled that in case of a breach of a treaty,suspension is possible. It added, in effect, a new ground for suspension to the listcontained in the Code on Criminal Procedure, resulting in a breach of a suspect’srights as defined by Article 6(3) ECHR. It had, through consistent interpretation,created new law in Dutch criminal procedure.72 Also in other cases the Hoge Raad heldthat, by way of application of the principle of consistent interpretation, the courts


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73 HR 16 November 1990, NJ 1992, 107, par. 3.2.3 (filling a gap in the Code on Civil Procedure byreference to the 1956 Convention on the Contract for the International Carriage of Goods by Road).

74 HR 12 May 1999, NJ 2000, 170 (holding that the Court can fill a gap when the system of the law, thecontents of the law and the principles or the history underlying the law provide sufficient direction as tohow the gap should be filled; but that when it would require important choices of legal policy, the matterin principle should be left to the legislator). See discussion by Martens, ‘De grenzen van derechtsvormende taak van de rechter’, Nederlands Juristenblad, 2000, 747.

75 Available on the Website of HMSO, URL: www.legislation.hmso.gov.uk/acts.htm (Acts of the UKParliament). The Act came into force in October 2000.

76 See generally e.g. Beloff, ‘“What Does it All Mean?” Interpreting the Human Rights Act 1998’ in L. Betten(ed), The Human Rights Act 1998. What it Means (1999), at 11; Lindell, ‘Invalidity, Disapplication and theConstruction of Acts of Parliament: Their Relationship with Parliamentary Sovereignty in the Light ofthe European Communities Act and the Human Rights Act’ in A. Dashwood and A. Ward (eds), TheCambridge Yearbook of European Legal Studies (Vol. 2, 2000), at 399; and Leigh and Lustgarten ‘MakingRights Real: the Courts, Remedies, and the Human rights Act’ [1999] CLJ 509.

should fill gaps in the law.73 The construction is analogous to the one applied in EClaw. In both cases, the outcome of the principle of construction resembles that of theprinciple of direct effect.

One limitation to the effects of consistent interpretation, which arises in a similarfashion with direct effect, will be applied by the courts, though. When applying a ruleof international law leads to putting aside the otherwise applicable rule of nationallaw, and the rule of international law itself does not provide a solution for the resultinggap in the law, the principle of separation of powers calls for judicial restraint.74 Whereinterpretation becomes amendment and the existing national or international lawdoes not provide sufficient guidance, the practice of consistent interpretation willencounter its limits.

7 A Comparative Note: ‘the English Marleasing’ (HumanRights Act 1998, Section 3)The ECJ’s principle of consistent interpretation and the practice of Dutch courts can beput in a comparative perspective by examining the UK Human Rights Act (HRA), thatincorporates most, but not all, of the fundamental rights laid down in the 1950European Convention for the Protection of Human Rights and FundamentalFreedoms.75 This Act contains a statutory duty for the courts to construe their law incompliance with an instrument of public international law. This principle ofconsistent interpretation is a hybrid of the two systems studied so far: it is a creature ofdomestic law but modeled on EC law. In constitutional terms, the status of so-calledConvention rights under the HRA within the UK legal order is comparable toEuropean Community law: both systems require that English law, both statute andcommon law, be compatible with the ‘European’ norms. There is, however, animportant difference between the powers of the courts in the event of a perceivedincompatibility. The HRA does not empower courts — unlike the principle of directeffect of EC law — to set aside an English Act of Parliament where it conflicts with theHRA.76 The only remedy in this context is a declaration of incompatibility which does

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77 Bamforth, ‘The application of the Human Rights Act 1998 to public authorities and private bodies’[1999] CLJ 159, 169.

78 Cf. Edwards, ‘Reading down legislation under the Human Rights Act’ 20 Legal Studies 353 (2000); Leighand Lustgarten, supra note 76, at 511; House of Lords, R. v DPP, ex parte Kebilene [1999] 3 WLR 972,[1999] 4 All ER 801: ‘Section 3(1) enacts a strong interpretive obligation’, per Lord Steyn.

79 Beloff, supra note 76, at 29; Leigh and Lustgarten, supra note 76, at 538–539; K. Starmer, Blackstone’sHuman Rights Digest (2001), at 28; K. Starmer, ‘Two Years of the Human Rights Act’, [2003] EHRLR 14.

80 See, for an overview, Starmer, ibid.81 [2002] 2 A.C. 291, [2002] 2 All ER 192.

not affect the validity, continuing operation or enforcement of the affected provision,nor is it binding on the parties to the proceedings in which it is made (S. 4(6)).However, Section 3 of the HRA obliges the courts to interpret legislation, both primaryand secondary, whenever enacted, ‘so far as it is possible to do so . . .’ and to give effectto it ‘in a way which is compatible with the Convention rights’. The wording of thisEnglish duty of consistent interpretation is, of course, almost identical to the ECJ’sformulation in Marleasing; in fact, it has been modeled on it. It has therefore beensuggested that the limits to the HRA’s duty should be drawn along the lines of thosecontained in the Marleasing formula.77

A similar far reaching impact is to be expected under this parallel obligation oninterpretation.78 It has been argued that this provision requires a different approach tostatutory interpretation than the one that has thus far prevailed in England. Thereexists a stronger case under the HRA for courts to reach compatibility, i.e. strongerthan the rule which allowed consistent interpretation only in case of ambiguity.Consistent interpretation is considered possible and must be achieved as long as thestatute is not distorted. Most importantly, a purpose-oriented approach to statutoryinterpretation is required in this context, as it is in the context of giving effect to EClaw; in positive terms courts must proceed from a presumption of compatibility andachieve congruity unless the wording of the statute makes that clearly impossible.79

As the HRA is still recent, it is too early to assess its full impact on legal practice.80

However, given the numerous cases in which it has already been invoked, there canbe no doubt about its significance.

In fact, the UK’s highest court has already had the opportunity to rule on the scopeand limits of the interpretative obligation of the HRA, most recently and mostcomprehensively on 14 March 2002. In In Re S (Minors) (Care Order: Implementationof Care Plan) it dealt with the issue of construing the 1989 Children Act in the light ofArticles 6 (fair trial) and 8 (family life) ECHR.81 The House of Lords reviewed ajudgment of the Court of Appeal which contained two major adjustments andinnovations in the interpretation and application of this Act of Parliament (underSection 3 HRA), including newly established guidelines on the procedure to befollowed by first instance courts when ruling on applications for care orders. TheCourt of Appeal had introduced so-called starred milestones into care plans, obligingthe local authority to reactivate the process of the plan’s adoption if they are notreached. The issue before the House of Lords was whether the courts have the power


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82 R. v. A. [2002] 1 A.C. 45 (Re Complainants Sexual History) per Lord Hope, para. 108.83 Lord Nicholls, paras 23–25.84 Ibid, paras 40, 44. It would also seem that one of the reasons for the House of Lords’ reversal of the Court

of Appeal’s innovation was that it was not raised during the hearing; it first appeared in the judgment.85 [2002] 1 A.C. 45, 2001] 3 All E.R. 1 (Re Complainants Sexual History). See also Spencer, ‘“Rape shields”

and the right to a fair trial’, [2001] CLJ 452 (Case and Comment on R. v. A.).86 See, for illuminating examples of reading words into (i) the Civil Procedure Rules and (ii) the Fatal

Accidents Act 1976: Goode v. Martin [2002] 1 WLR 1828, [2002] 1 All ER 620 (CA) and Cachia v. Faluyi[2001] 1 WLR 1966, [2001] 1 All ER 221; both cases concern Art. 6 ECHR (fair trial). In the latter case,the Court of Appeal itself says: ‘This is a very good example of the way in which the enactment of theHuman Rights Act 1998 now enables English judges to do justice in a way which was not previouslyopen to us.’

to ‘read into’ the Act in question, rights and liabilities not sanctioned by Parliament.According to its unanimous judgment, these innovations in particular went beyondthe limits of the interpretative obligation. Most notably, perhaps, the House of Lordsconsidered the limits to judicial innovation in the (constitutional) light of theseparation of powers. It accepted that Section 3 of the HRA (the interpretiveobligation) was a powerful tool and was not subject to the existence of ambiguity.‘Compatibility with Convention rights is the sole guiding principle.’82

However, the outer limit of this power lies in the fact that the HRA did preserveparliamentary sovereignty over amending and enacting statutes. The Court ofAppeal’s introduction of the cited ‘starred milestones system’ (into the Children Act)had crossed the boundary between interpretation and amendment since it departedsubstantially from fundamental features of this Act of Parliament, including expresslimits to the courts’ powers for the duration of a care order when parentalresponsibility is exercised by the local authority (principle of non-intervention).83 Oneindication of the fact that the boundary between interpretation and amendment hasbeen crossed lies in the result of this new scope, which has practical repercussions thatthe court is not equipped to evaluate.84

In terms of general observations about the limits to ‘reading into’ or ‘reading down’statutes, the March 2002 judgment adds to (but does not take from) the House ofLords’ judgment in R. v. A. (No. 2).85 Briefly, this case concerns the conflict betweenthe requirements of a fair trial (Art. 6 ECHR) and a statutory provision of English lawprotecting rape victims from being harassed in court about their sexual history;exclusion of evidence in this respect is problematic where the defendant argues thatthe victim had consented to sex. In terms of ‘HRA law’, the question is whetherSection 41 of the Youth Justice and Criminal Evidence Act 1999, which excludes priorsexual history from the admissible evidence, can be construed to ensure thedefendant’s right to a fair trial. Lord Steyn affirmed that Section 3 HRA goes farbeyond the prevention of absurd consequences. Linguistically strained interpretationmay sometimes be necessary; but reading down provisions and implying provisionsare also among the techniques to be used.86 A declaration of incompatibility is the lastresort and ‘must be avoided unless it is plainly impossible to do so’; impossibility ariseswhere a clear limitation of Convention rights is stated in such (express or necessarily


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87 No. 46, at [2002] 1 A.C. 68, citing Lord Hoffmann in Simms [2000] 2 A.C. at 131; see also Lord Hope in Rv. A (No. 2) [2002] 1 A.C at para. 108; Lord Hope agrees with the test formulated by Lord Steyn in hisleading speech, see No. 110, but thinks that there is no incompatibility between the Act and Art. 6 ECHReven on ordinary principles of construction (thus, he does not ‘resort to’ S. 3 HRA at all), see para.106–107 at [2002] 1 A.C. 86.

88 Simms [2000] 2 A.C., per Lord Hoffmann at 132; see also McLellan [2002] 2 WLR 1448 (C.A.), Nos.76–77 per Waller L.J.

89 In fact, even outside the ‘European’ dimension, English courts no longer apply a literal reading of statutes,Pepper v. Hart [1993] A.C. 593 at 617 per Lord Griffiths and at 635 per Lord Browne-Wilkinson. See alsoSteyn, ‘Pepper v. Hart; A Re-examination’, 21 OJLS 59, 70 (2001).

90 Webb v EMO Air Cargo (UK) Ltd (No 2), [1996] 2 CMLR 990, [1995] 4 All ER 577, [1995] 1 WLR 1454.91 Lord Hope in R. v. A., at No. 106. Or, in the words of Spencer: ‘. . . (in effect) to do whatever violence [is]

necessary to the language . . . .’ see Spencer, ‘“Rape shields” and the right to a fair trial’, [2001] CLJ 452,at 454 (Case and Comment on R. v. A).

92 M. Hunt, Using Human Rights Law in English Courts (1998), at 121–122; Craig, ‘Indirect Effect ofDirectives in the Application of National Legislation’, in M. Andenas and F. Jacobs (eds), EuropeanCommunity Law in the English Courts (1998) 37, at 49–50: albeit subject to a distinction between casesinvolving express implementing legislation or not. Note in particular the contrast with the House ofLords’ first judgment in Webb (the reference to the ECJ), [1992] 4 All ER 929, [1993] 1 WLR 49: emphasison further consideration of possibility to reach a consistent interpretation; reference to limits of the duty:no distortion of statute.

implied) terms.87 In other words, general wording in statutes, which could beconstrued to restrict fundamental rights, shall be deemed to be subject to those rights(principle of legality). This canon of construction was already well established beforethe HRA. The Act adds that in the unusual case where an infringement of Conventionrights by the legislature ‘is so clearly expressed as not to yield to the principle oflegality’, the courts will make a declaration of incompatibility.88

This early experience with the interpretative obligation under the HRA reflects,regarding techniques of statutory interpretation, the predicted convergence with thepurpose and result oriented approach to statutory interpretation under the Marleasingformula; ensuring an interpretation which complies with the Convention isparamount. The courts apply this ‘European style’ canon of interpretation whenever apotential conflict between Convention rights and English law arises.89 In the EC lawcontext, this is apparent in the House of Lords’ Webb90 judgment, where itwholeheartedly accepted the ECJ’s ruling, requiring a drastic reinterpretation of therelevant English statutes. The interpretative obligation under the HRA has beendescribed as ‘surgery’ to ensure compatibility by modifying, altering or supplementingthe words of Parliament in the Act at issue.91 The national court therefore no longeremphasizes the limits to consistent interpretation through the sole distortion of themeaning of a statute but focuses instead on reaching a directive’s result, if this is at allpossible.92

English courts have developed relevant viewpoints as to the limits of theinterpretative obligation; these include the boundary between interpretation andamendment of a statute, and thus the limit to the interpretative obligation in terms ofthe constitutional role of courts and whether the proposed reading of a piece oflegislation has practical repercussions beyond a court’s capacity to evaluate (a factorthus closely linked to the forbidden judicial legislation). Inherent uncertainty about


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93 See for example, the opposing views as to incompatibility, even under ‘ordinary’ principles ofconstruction, of Lord Hope (No. 109) and Lord Clyde (No. 161) in R. v. A. [2002] 1 A.C. 45 as well as theircontrary views on the (im)possibility to reach a Convention compliant reading under Section 3 HRA (Nos109 and 162); Dissenting Opinion of L.J. Sedley in Marper and Another v. Chief Constable of South Yorkshire[2002] EWCA Civ 1275, at No. 94.

94 It is true that in Case 14/83, Von Colson and Kamann, [1984] ECR 1891, the ECJ referred to the nationalcourts’ discretion under their own laws (para. 28) but this particular phrase has only been repeated oncein the numerous subsequent cases; see Case C–136/95 Thibault [1998] ECR, I–2011, para. 22.

the boundary between an impermissible creative interpretation and a robust andsensible construction of documents thus remains, as put by Lord Nicholls (para. 40 ofthe Care Order case); it is not a new problem but it is more acute nowadays in thepost-HRA era and the more liberal attitudes of courts generally. Opinions willinevitably differ as to when the frontier between interpretation and amendment(resulting in forbidden judicial legislation) has been crossed. Ultimately, this is amatter of appreciation by each individual judge or panel, with, of course, the final sayfor the highest court involved in the case in hand, which, indeed, may not be able toreach a unanimous view on the matter itself.93 Thus far, the ECJ has not elaborated onthis particular restriction.94

8 Final ConclusionsThe above analysis leads to the following conclusions.

Firstly, starting with the obvious but most important fact, through the practice ofconsistent interpretation, national courts play a major role in the application ofinternational law. This is true where a treaty has not been implemented, but alsowhen the legislature has transposed a rule of international law, giving rise toquestions as to its proper application. It is only after a court’s interpretation of therelevant domestic legislation in the light of the treaty that it may be assessed whether atreaty has been correctly applied.

Secondly, case law (and accompanying legal doctrine) on Community law andpublic international law have gone their separate ways. Without assimilating theselegal systems, we conclude that there are overlapping patterns. The differencebetween the legal orders of EC law and public international law is one of degree ratherthan of principle. On the one hand, supremacy may also exist in EC law by virtue ofconstitutional acceptance, while, on the other hand, in several states, including theNetherlands and even dualist states like the United Kingdom, national practice hasmade the role of national courts with regard to international law closely resemble totheir role in EC law.

The impact of the principle of construing domestic law consistently withsupranational law in both legal systems further mitigates the clear distinctionbetween Community law and public international law. In both situations, the courtsrecognize that there is a binding rule of law, higher in the hierarchy, and that thedomestic law is to be construed so as to give effect to that rule of international law. The


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limitations to application are based on similar considerations — the margin left by thepertinent national provision, legal certainty, and the constitutional role of the courts.

In evaluating the requirements of the principle of legal certainty, a distinctionbetween different legal areas must be made. In the criminal law context, the principleof legality (nullum crimen nulla poena sine lege) plays a pivotal role; perhaps the samecan be said for administrative law. In civil law disputes, by contrast, there is a widerscope for consistent interpretation as the imposition of unwritten duties of due care isacceptable.

Thirdly, in some respects the judicial application of international law could benefitfrom studying developments in Community law and vice versa, while taking intoaccount the larger autonomy of public international law. This is particularly true forthe limits to consistent interpretation. These limits are more developed in EC law thanin the indirect effect of international law (i.e. under Dutch law), notably with respectto the application of general principles of law such as the principle of legal certainty.To the extent public international law is being increasingly applied by national courts,the impact of these principles must be given greater consideration and Communitylaw may be a source of inspiration. In both contexts courts have ‘read in’ additionalgrounds of review etc. or, by contrast, have ‘read down’ a domestic statute where itwent beyond, for example, an exhaustive list of grounds under EC or internationallaw.

Case law on the application of public international law only addresses to a limitedextent a number of issues that have proved to be critical in the richer EC case law. Theuse of consistent interpretation, as well as its limitations, to the detriment of a privateparty, and the use of treaty norms in the judicial determination of a standard of duecare in disputes between private persons all require additional scrutiny. Lessons alsocan be learned from Community law with respect to reasonable limits to theimposition of obligations on individuals. Taking differences between legal systems intoaccount, the approaches to the effect of public international law can be furtherdeveloped in light of the more frequent judicial application of Community law. Thatbeing said, guidance provided by English courts in the context of the HRA also offer avaluable contribution to the principle of consistent interpretation, by clarifying forexample the boundary between acceptable, albeit robust and creative, interpretationand the ultimate forbidden fruit: judicial legislation.

giving effect to public international law and european community

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